Appeal No.	EAT/1377/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 January 2001
Judgment delivered on 16 May 2001

Before
MR RECORDER UNDERHILL QC
MR J R CROSBY
MR S M SPRINGER MBE

MR N C JACKSON	APPELLANT

EAST SUSSEX COUNTY COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J LADDIE
(of Counsel)
Instructed By:
Mr A Kofi Akainyah
Messrs Akainyah & Co
Solicitors
308 Seven Sisters Road
Finsbury Park
London N4 2AG	
For the Respondent	MR D OUDKERK
(of Counsel)
c/o Mr T Baker
East Sussex County Council
Pelham House
St Andrews Lane
Lewes
E Sussex
BN7 1UN

MR RECORDER UNDERHILL QC:

1	The Appellant, who is of Afro-Caribbean origin, has worked as a social worker since 1983.  In early 1999 he applied for a post as Service Manager with the Respondents, for whom he had been previously employed between September 1996 and March 1998.  There were ten applicants for the post, of whom four were shortlisted.  The Appellant was not among them.  He brought proceedings under the Race Relations Act 1976 claiming that the Respondents’ decision not to shortlist him was taken on racial grounds.   By their Grounds of Resistance the Respondents denied discrimination and alleged that their arrangements in arriving at a shortlist were based on objective, non-race related criteria which were applied to all candidates in an objective manner.  

2.	The Appellant was unrepresented throughout the proceedings, although it is fair to note that he had some relevant experience, in that he had brought previous proceedings against the same respondents during 1998 in which he had been represented by his trade union.  He did not serve any questionnaire under the 1976 Act (although this had been done by him, or on his behalf, in the earlier proceedings).

3.	A hearing date was fixed in the Employment Tribunal for 14th  October 1999.  On 19th September 1999 the Appellant wrote to the Respondents, with a copy to the Tribunal, in the following terms:
“Please will you forward to myself all of the application forms of the candidates who applied for the position of Service Manager (Adult Development Unit).  Also who were the successful applicants who were shortlisted for interview for the post.  I would appreciate it if the details were sent within the next seven days.” 

Having received no reply, on 3rd October 1999 he wrote to the Tribunal asking for an order.  His letter reads as follows:
“I wrote to the Respondent on 19th September 1999 asking for copies of the application forms, and information regarding the successful candidates who were shortlisted.  To date, I have not received a response from East Sussex County Council, despite asking for the above information to be supplied within seven days from the date of my original letter.  Therefore, I am asking if you will place this matter before a Chair of the Industrial Tribunal to make an order for the discovery of documents.  These documents are needed to form part of my evidence, and if I have them before the hearing it would prevent any unnecessary delays to the hearing of the 14th October 1999.”

On 5th October 1999 the Respondents sent a letter to the Appellant by special delivery in the following terms:

“Please find herewith our proposed bundle of papers.  You will notice that we have only included in the bundle the four application forms for the candidates who were shortlisted for interview.
As requested, however, we do also enclose the application forms of those who were not shortlisted.  
We look forward to receiving your bundle of documents shortly, and in advance of the hearing.”  

In the meantime the Tribunal, in ignorance of the Respondents’ letter of 5th October 1999, wrote to the Appellant on 6th October 1999 in the following terms:
“A Tribunal Chairman to whom your letter dated 3 October was referred, instructs me to inform you that he is not prepared to make the order requested by you.  He considers the order is unnecessary to fairly dispose of these proceedings or to save costs, and the issues appear to be clear.  
Further Particulars relating to evidence will not usually be ordered.  This is because the main purpose of obtaining Further Particulars from the other side is to enable a party to know in sufficient detail the nature of the case which will be put up against him.  Therefore only particulars of the facts to be relied on by the other side can be obtained.  Details of the evidence which an opponent intends to adduce in an attempt to prove those facts will not usually be ordered by the Tribunal.”

4.	Two questions have arisen before us as to the effect of that exchange of correspondence – 
	(a)	of precisely what documents was the Appellant asking for discovery in his letter of 3rd October 1999?  
	(b)	what order, if any, in relation to “information” was he seeking by that letter?
Since the letter of 3rd October refers to the letter of 19th September, which had itself been sent to the Tribunal, the later letter must be read in the light of the former. 

5.	 Unfortunately this Tribunal is divided on the answer to both questions.

6.	As to (a), it was common ground between the parties that the candidates for the position, including of course the Appellant, had been asked to complete for the purpose of the application two forms - (i) an application form asking for personal details and information about previous experience, qualifications etc.;  and (ii) an ethnic monitoring form giving details of their racial origin.  The former was for the use of the Respondents’ panel responsible for the shortlisting exercise.  The latter was not intended to go to the panel but was in order to enable the Respondents to monitor the possibility of racial discrimination in their recruitment practices.  Mr Laddie, who appears for the Appellant, argues that his application is to be taken to have been for disclosure of both forms.  Mr Oudkerk, for the Respondents, contends that the request was only for the application forms themselves.  The view of the majority is that the request is most naturally read as relating to the application forms only and not as extending to the ethnic monitoring forms, which are distinct and would not normally be described as “application forms”.  The Appellant, having completed both forms, was well aware of the distinction between them, as of course were the Respondents: if he had wanted both, it would have been both easy and natural to specify both.  Mr Laddie argues that it should have been obvious - this being a race discrimination case - that the Appellant would have been interested in the ethnic monitoring forms as well as the application forms because the information that they contained was essential to his case.  We consider below the extent to which that is in fact true; but even if it is, the fact remains that he did not ask for them and  it is unreasonable to expect the Respondents or the Tribunal to have interpreted his request  in wider terms than it was in fact made.  Mr Springer takes a different view, as he explains at the end of this judgment.  

7.	As to (b), the phrase in the letter of 3rd October 1999 “and information regarding the successful candidates who were shortlisted” is in very general terms and does not specify what “information” is required.  Mr Laddie contends that it can only sensibly be read, having regard to the fact that the Appellant’s claim was for racial discrimination, as comprising or including a request for information as to the race of the successful candidates.  The majority do not accept this contention.  Reading the letter, as we have held that it must be read, with the letter of 19th September, it seems to us plain that the information which was being sought was the information more specifically identified in the earlier letter, namely which of the ten candidates were shortlisted.  That is the only natural reading of the letters taken together.  Mr Laddie contends that such information by itself was of little or no value.  We do not agree: as more fully discussed below, if the Appellant had been able to show that according to objective criteria he had scored better than all or some of the shortlisted candidates that would have been of real importance to a contention that the failure to shortlist him had been on racial grounds.  In any event, we do not believe that his request can be construed as covering this information.  Again, Mr Springer takes a different view for the reasons which he gives below.  

8.	If this analysis is right, the Appellant in fact received the documents and information for which he asked, despite the refusal of the Tribunal to make an order to that effect.  The Respondents with their letter of 5th October 1999 sent him the application forms and told him which related to the candidates who were successful (i.e. those in the bundle) and which to those who were not.  It follows that, in the view of the majority, the refusal of an order by the Tribunal had no practical effect.  We should however make clear that we are unanimously of the view that the Tribunal’s Order was wrong.  The documents and information which the Appellant sought were - as the Respondents themselves recognised - of a kind which are routinely provided in race discrimination cases and to which an applicant would in all ordinary circumstances be entitled on request.  The Tribunal’s letter does not suggest that any serious consideration had been given to the nature of the Appellant’s case: indeed the second paragraph, relating as it does to Particulars, suggests that the Tribunal had not even appreciated that the request related, at least in part, to discovery.

9.	The hearing proceeded on 14th October 1999.  It lasted a single day.  The Tribunal heard evidence about the handling of the applications from the three employees of the Respondents who comprised the shortlisting panel.  They saw a bundle of documents which included the application forms of the successful candidates, with names deleted.  It does not appear that they were shown the application forms for the unsuccessful candidates, although, as explained above, the Appellant had been supplied with these.  The Appellant did not ask for disclosure of the ethnic monitoring forms or ask the Respondents’ witnesses whether they were aware of the racial origins of any of the other candidates.  (It should be noted that this is not necessarily something that they would have known, since the shortlisting was a paper exercise only, in which they did not have any information about the racial origins of the candidates.  It is information which the panel would only have had if the candidate was a current employee or previous employee, like the Appellant, whom they happened to know - or, perhaps, if a candidate’s name clearly indicated that he or she was from an ethnic minority.)  It follows that, as they  expressly acknowledged (Reasons para. 4(g)), the Tribunal “did not receive any evidence as to the ethnicity of the other candidates, both successful and unsuccessful”.

10.	The Respondents’ witnesses gave evidence of the scoring system which they had applied to rank the candidates in accordance with various specified criteria.  It appears that the Appellant had scored the lowest of any of the candidates.  The Tribunal expressly accepted the Respondents’ witnesses’ evidence that the reason for the Appellant’s low score was a genuine assessment of his abilities and experience against the specified criteria: he scored particularly low on management experience and experience of budgetary control.  Two of the members of the panel were aware, as a result of his previous employment, that the Appellant was black, although the third was not: the Tribunal made an express finding that that had no influence on their deliberations.  

11.	The decision of the Tribunal was accordingly that the decision not to shortlist the Appellant was not made on racial grounds, and they dismissed his claim: see Reasons para 5(c).  Extended Reasons were sent to the parties on 19th October 1999.  The Tribunal also, by a majority, ordered that the Appellant should pay a sum of £500 by way of costs under reg. 12 of the Industrial  Tribunals (Constitution and Rules of Procedure) Regulations 1993 “on the basis that [the Appellant’s] bringing or conducting these proceedings was unreasonable”. 

12.	The Appellant initially appealed against both the dismissal of his application and the order for costs.  At a preliminary hearing on 26th May 2000 he was given leave to amend his Grounds of Appeal in order to challenge also the Tribunal’s Order contained in its letter of 6th October 1999 which we have set out above.  The amended Grounds of Appeal now read as follows:
“The grounds on which this appeal is brought are that the industrial tribunal erred in law in that:
(a)	it refused to order production of documentary evidence relating to the racial characteristics of all applicants to the post at issue in this case (on 6th October 1999), thus denying the Appellant an opportunity to establish a base from which he might be able to prove race discrimination (see Carrington v Helix Lighting [1990] IRLR 6; EAT)the appellant’s claim was dismissed on 19th October 1999 despite the tribunal not having any relevant evidence of the racial characteristics of all or any other of the applicants for the post at issue; accordingly, it is submitted that the tribunal failed to take into account a relevant consideration; 
(b)	at the conclusion of the case it ordered costs in the maximum sum of £500, against the Appellant; this decision is challenged on two grounds
(i)	first, the tribunals decision was perverse - bearing in mind the frequent need for an applicant in a race case to prove his/her case by inference, it was unreasonable for a majority of the tribunal to conclude that “it must have been apparent to Me Jackson that there was no evidence of race discrimination in this case”;
(ii)	second, in reaching its decision to award costs against the Appellant, the tribunal took into account a copy of a previous decision of another tribunal involving the same parties - essentially, this tribunal penalised the appellant for having brought more than one set of proceedings against the same respondent; in doing so, it is submitted that the tribunal took into account an irrelevant consideration.”

We turn to consider those grounds in turn.  

(a)        The Decision of 6th October 1999

13.	As indicated above, we believe that the Tribunal’s decision of 6th October 1999 was plainly wrong.  The Appellant was entitled to the documents and information to which his application, as the majority of us interpret it, related.  However, it is an empty victory for the Appellant to succeed on this point if, as the majority of us have held, the documents and information supplied to him voluntarily by the Respondents comprised the totality of what he had sought from the Tribunal.  Thus, while we allow the appeal, that decision is of no substantial significance.  

14.	We ought, however, to consider the position on the basis that the view of the majority is wrong and the Appellant’s request in the letter of 3rd October 1999 is to be treated as seeking, as Mr Laddie contends, details of the racial origins of the other candidates - whether in the form of the ethnic monitoring forms or simply by way of information.  In our view, even if the request is to be regarded as being in those more extensive terms, the Tribunal were still wrong to refuse it.  Whether or not, as we consider below, it was possible for the Tribunal at the full hearing to dispose of the matter without this information, it was on any view material to one aspect of the issues which fell to be considered: such orders are regularly made and we can see no reason why such a request should have been refused in the present case.

15.	The question would then arise of what impact the refusal of such a request had had on the outcome of the hearing.  Mr Laddie contends that the refusal of the Appellant’s application for discovery and information necessarily vitiated the fairness of the hearing which followed.  He says that the Appellant was entitled to regard himself as precluded from making any further request for the ethnic monitoring forms (on the assumption, which we have to make for this part of the argument, that that is what he had asked for first time round) or for information as to the racial origins of the other candidates.  The majority do not believe that this is right.  We do not believe that a reasonable applicant in the Appellant’s position would - had he regarded the issue as important - have simply failed to raise at the hearing his request for the ethnic monitoring forms or for the information which they contained.  He could in any event have asked the Respondents’ witnesses in evidence whether they knew what was the race of at least the shortlisted candidates.  The order of 6th October could not on any view reasonably be taken to preclude the investigation of the issue in evidence so far as necessary.   Mr Springer’s view to the contrary appears at the end of this judgment.  In any event, in view of our finding on the true construction of the Appellant’s request, the points is not one which is essential to our decision.  

(b)       The Dismissal of the Appellant’s Claim for Racial Discrimination 

16.	Again, we are regrettably divided on this issue.  What follows is the decision of the majority.  Mr Springer’s view appears at the end of the judgment.

17.	The essence of the attack on the Tribunal’s finding on the issue of racial discrimination is that they could not properly reach a conclusion on that issue without knowing the racial origins of at least the shortlisted applicants.  Mr Laddie contends that the concept of “less favourable treatment” in s. 1 (1) (a) of the 1976 Act requires a tribunal to consider the treatment of an applicant as compared with a comparator - actual or hypothetical - of different race; and he relies in this connection on the reference by the Court of Appeal in Marks & Spencer Plc v Martins [1998] I.C.R. 1005 to “the compulsory comparison” (p. 1019 D).  It is of course true that in order to succeed in a claim under s. 1 (1) (a) an applicant must show that he or she has been treated less favourably than a person of another race was or would have been treated.  And in a case like the present where the applicant claims to have been treated less favourably than other specified persons - i.e., here, the shortlisted candidates - it would certainly be usual for him or her specifically to seek to prove that one or all of them was of a different race.  In the present case the Appellant did not do so; and it might perhaps have been open to the Tribunal to dismiss his claim on that basis (though if they had sought to do so, the evidential gap would almost certainly have been filled).  Sensibly, however, the Tribunal preferred to deal with the substance of the matter.  What, in effect, they did was to consider whether, even if some or all the shortlisted candidates were white (as all concerned must have thought was likely), the less favourable treatment of the Appellant as compared with them was “on racial grounds”.  They found that it was not: on that basis it was unnecessary to establish what  the ethnic background of the other candidates was.  To put it another way, the Tribunal had assumed “the compulsory comparison” in the Appellant’s favour.  

18.	Mr Oudkerk suggested that the effect of the Tribunal’s finding as to the Appellant’s scoring on the Respondents’ criteria meant that the “relevant circumstances” in his case were materially different from those of the shortlisted candidates, within the meaning of s. 3(4) of the 1976 Act.  It is well recognised that often what are substantially the same arguments may be framed either as a denial of treatment on racial grounds under s. 1 (1) (a) or as an assertion of different circumstances under s. 3 (4) ; so Mr Oudkerk may be right.  But we would prefer to uphold the decision of the Tribunal on the basis which they appear to have adopted themselves.

19.	It does not follow that evidence about the racial origins of the other candidates would have been irrelevant in principle.  On the contrary, it is usually available in cases of this kind.  The least that it does is to ensure that the applicant can securely establish less favourable treatment.  In addition, depending on the circumstances, evidence of the distribution of ethnic minority candidates between successful and unsuccessful candidates may be evidence which assists the Tribunal in their determination of whether the treatment in question was on racial grounds.  Thus if, for example, three of the four shortlisted candidates had been (and been known by the panel to be) black a claim that the Appellant had been discriminated against on racial grounds by comparison with the fourth, white, candidate would no doubt have failed.  Conversely, if all of the rejected candidates had been (and had been known by the panel to be) black and all the shortlisted candidates had been (and been known by the panel to be) white, evidence by the Respondents that this was the accidental result of applying objective criteria would have been viewed with some scepticism.

20.	But it was for the Appellant to adduce such evidence if he wished to rely on it.  As discussed above, he did not do so.  It was not the responsibility of the Tribunal to investigate the issue for him - see Mensah v East Hertfordshire NHS Trust [1998] IRLR 531.  It seems very unlikely that in the present case evidence about the racial origins of the shortlisted candidates would have shed much light: the Tribunal had already, in effect, assumed in the Appellant’s favour (probably realistically) that they were white.  As for the racial origins of the non-shortlisted candidates, there is no basis for making any assumption either way; but there is certainly no particular reason to believe that it would have shed any light either.  But the essential point is that it was not explored; and the majority do not believe that this gives rise to any error of law.

21	We accordingly dismiss the appeal against the Tribunal’s substantive decision of 19th October 1999

(c)       The Order for Costs

22	The Tribunal awarded costs against the Appellant on the grounds that the majority took the view “that it must have been apparent to [the Appellant] that there was no evidence of race discrimination in this case”.  An award of costs against a party on this basis is always a serious matter; and particular care is needed where the claim is for discrimination, where it is recognised that applicants with well-founded cases may nevertheless face special difficulties in establishing the basis of their claims.  We do not say that such an order will never be appropriate; and it may well be relevant whether the applicant has made use of the questionnaire procedure available under the 1976 Act.  But good reasons will need to be given - not necessarily at any length but sufficiently to indicate why the tribunal believed that the applicant knew that his claim was hopeless.

23	We do not believe that the Tribunal’s order here satisfies that requirement.  The only reason given is the single sentence set out above, together with a reference in the same paragraph to a decision in other proceedings brought by the Appellant in the previous year against the Respondents.  In that case the Tribunal had dismissed his claim for racial discrimination.  It had refused an application for costs made on the basis that “[the Appellant] must have known that there was no substance in his claim” but had continued.

“We would, however, add that if the Appellant were in future to bring some further unsuccessful application to the Tribunal, then without in any way seeking to bind the hands of the Tribunal that hears such claim, we do think it appropriate that a copy of this Decision be brought to its attention at the appropriate time.”

There is nothing wrong in principle in a tribunal having regard to the fact that an applicant has brought other unsuccessful proceedings before, to the extent that that may bear on the question whether it was reasonable for him to bring the proceedings in question.  But it would be illegitimate to assume that merely because the first proceedings failed the applicant must have known that the second proceedings would fail as well: all depends on the particular circumstances.  The Tribunal here have not given any explanation of what they believe the relevance of the earlier proceedings was.

24	Mr Oudkerk has sensibly indicated that if we upheld the appeal on the costs order on this basis, the Respondents would not seek to have the issue remitted to the Tribunal.  Accordingly we simply allow the appeal.

Mr Springer’s Reasons

25	In respect of the first ground of appeal, it is clear from the letter of 3rd October 1999 the Appellant wrote to the Employment Tribunal requesting an order to be made for “... copies of the application forms and information regarding the successful candidates to date ....  These documents are needed to form part of my evidence and if I have them before the hearing [etc]....”.  That letter was received by the Tribunal on 5th October 1999.  The Appellant was complaining of being discriminated against in that he was not short-listed and that the Respondents were in breach of Sections 1 (i) (a), 1 (i) (b), 4 (i) (a) and (c) of the 1976 Act.  The correct interpretation, assessing the request objectively, was that the information sought was necessary to enable him to make comparison of his application and those of the successful candidates against the Job Description and person specification and to assess whether, in his opinion it was possible to imply that his race, national or ethnic origin played some part in him not being short-listed for interview.  To deny the Appellant this information was putting the Appellant at a disadvantage either in the preparation of his case or whether to decide to continue with the litigation.

26	The application forms received from the Respondents by the Appellant on 5th October 1999 may have satisfied the request made to the Respondents in his letter of 19th September 1999, received by them on 23rd September 1999, but did not fully meet with the request made in the letter of 3rd October 1999 to the Tribunal.  I accept Mr Laddie’s submission that in this case the information requested was relevant and that discovery of the requested information would not have been oppressive.  I do not accept that the Appellant was requesting copies of the ethnic monitoring forms.  Therefore, in deciding on 6th October 1999 that making an order to discover the information requested was unnecessary to fairly dispose of the case, was an erroneous decision.  

27	The Employment Tribunal, in paragraph 5 (a) of their decision, found that the Appellant suffered a disadvantage compared to the four candidates short-listed.  It therefore follows he suffered a detriment in not being short-listed.  The Employment Tribunal failed to set out in (c) with sufficient detail, as a result of the Appellant’s low score, why it was not necessary to enquire whether the Appellant’s race, colour, national or ethnic origin played any part in the assessment of his application form against the Job Description, person specification and selection criteria.  

28	It was evidenced that two of the short-listed panel knew or knew of him.  In the circumstances there was an obligation on the Employment Tribunal to make enquiries and carry out a comparative exercise which is essential to determine whether the treatment in assessing the Appellant’s application was or was not race based.  The Tribunal found at paragraph 5 (b) of their decision that the method of scoring left something to be desired.  If the Tribunal did carry out the comparative exercise to determine whether the Appellant suffered less favourable treatment without knowing the ethnic origin of the short-listed candidates, they failed to set out their reasoning in sufficient detail to satisfy the test set out in Meek v. City of Birmingham City Council [1987] IRLR 250.  The Employment Tribunal further failed to set out their reasoning of those issues which brought them to the finding of fact that they were in a position to accept the Respondents’ submission that the Appellant had not demonstrated in his application form that he had the requisite qualities for which the Respondents were looking.

29.	Given the foregoing, I would have ordered that the appeal should be allowed and the matter be remitted to a different Tribunal.